Publications

Mother Nature has presented us with the Polar Vortex and the Supreme Court of Canada has delivered bitter temperatures with Schaeffer. I can confidently say we will survive both.

Schaeffer vs. Wood – A Matter of Perspective…

This case was released by the Supreme Court of Canada on December 19, 2013, and addressed the right of police officers to consult with legal counsel prior to the preparation of their notices during an investigation involving the Special Investigations Unit.

The Supreme Court determined that police officers do not have a right to consult with a lawyer prior to the preparation of their notes, however, this decision reaffirms that police officers are entitled to have counsel present for interviews and any additional processes thereafter. The Court ultimately failed to make a decision on the Charter rights of officers involved in SIU investigations, which renders this decision incomplete in that regard.

This ruling suggested that allowing police officers to fully consult with counsel at the note-making stage creates a sense of bad optics, however, it also emphasized that counsel giving full legal advice to police officers was not improper. In balancing a police officer’s public duty to accurately record an incident against that officer’s private interest in avoiding criminal prosecution, the Court favored the “appearances” argument of how it looked to the public. Despite the fact these two interests are one and the same, any public misunderstanding that is created by an officer receiving legal advice prior to completing his/ her notes, was found to outweigh that officer’s Charter rights.

Although very disappointing, we must consider that this case does not prevent officers from contacting their senior officers prior to the note-taking stage, and it does not prevent the immediate notification of counsel. In addition, this decision does not prevent counsel from discussing the matter at hand with individuals who are not involved in the actual incident, such as the SIU liaison officer, officers in charge, or association representatives.

Overall, we encourage all members in these situations to engage with their Association representatives, who are fully equipped to provide all of the necessary information. In addition, we also encourage our members to ask any questions they may have regarding SIU investigations prior to becoming involved in an SIU incident. We recognize the impact of not being able to consult with legal counsel prior to note taking, however, with the benefit of in-house legal counsel with expertise in the field of the SIU, we can work together to minimize the effect of this decision. A full copy of this case can be found at www.pao.ca.

Chad Power and the London Police Service (OCPC) – Insubordination or Self-Preservation?

In this case, released December 23, 2013, the Ontario Civilian Police Commission clearly concludes that the merging of criminal and Police Services Act investigations amounts to an abuse of process. In this case, the Commission determined the merging of these investigations was inappropriate and the evidence that resulted from them was therefore, contaminated. As a result, the Commission stayed the proceedings as against Chad Power.

The impropriety of police officers being forced to incriminate themselves during criminal investigations under the purported justification that they are being compelled to give a statement under the Police Services Act has been a common issue that has arisen over several years within disciplinary proceedings. Our position has repeatedly been that this practice is contrary to the Charter of Rights and Freedoms.

The common position from most Police Services has been to agree not to force police officers to give statements during criminal investigations, however, the reality is this still occurs, and at times, officers are ordered to provide statements under the threat of facing charges of insubordination should they refuse to “cooperate”.

In this decision, the Commission has emphasized that using Part V of the Police Services Act to compel evidence in a disciplinary matter 25 against a police officer, to assist a criminal investigation against the same officer, is not justified. It brings the police discipline system into disrepute to discipline an officer based on evidence that is acquired in this manner. It also undermines the public confidence that PSA-based investigations and proceedings will be conducted in a manner that is fair, lawful and respectful of a subject officer’s constitutional rights.

Investigations conducted by police officers have to be conducted with the greatest respect for fairness because they are the foundation of the further prosecution of offenses. For a full copy of this decision, visit www.pao.ca.

Taking the Initiative to Ensure Fairness

With increasing amounts of public complaints being brought forward, the OIPRD has become an integral part of the oversight that is taking place within this profession. In that regard, the role of your Association within these matters has also increased, and we want to make you aware of the positive steps we are taking to ensure this process is a fair one.

Pamela has engaged the OIPRD director Gerry McNeilly in discussion regarding several areas of concern for Associations. Some of the topics for discussion included the 6-month time period the PSA permits to have an officer served with a Notice of Investigation, the consistency in the approach taken by the OIPRD across the province, including penalties and procedures, and the consent of the public complainant and the OIPRD in formal disciplinary matters.The OIPRD has assured our organization they are working to ensure officers are not held in limbo for the 6-month time period, awaiting the outcome of their investigations. Furthermore, they have agreed to revisit their approach in several matters to ensure consistency is being applied. We are confident a more uniform approach will be taken to ensure all matters involving the OIPRD are dealt with according to the PSA, and the Rules of the OIPRD. We will continue to educate and update you on this process, as it unfolds.

The OIPRD is Not a Party to a PSA Proceeding

In a recent PSA decision, the OIPRD was denied standing at a disciplinary proceeding held as the result of a public complaint. The OIPRD was seeking to be made a party to the proceeding, and wanted a seat at the table to explain its position, call evidence and make submissions.

The PSA quite clearly states the parties to the hearing are the prosecutor, the subject officer and the complainant. The OIPRD is granted many extraordinary powers under the legislation, however, the law does not grant the OIPRD standing at an officer‘s disciplinary hearing. This is a position we maintain, and made very clear to the OIPRD during our meeting.

The Hearing Officer agreed, and held that standing for the OIPRD was neither necessary nor permissible under the Act. He further held that the OIPRD could provide evidence as a witness called by one of the parties to explain why information may not have been shared with the prosecutor. The full decision can be found on at www.pao.ca.

​One step at a time, we will work through these developments in order to ensure you are prepared for any outcome.

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Labour & Employment

Proficient in leading and conducting full contract negotiations for both Uniform and Civilian members. Carriage of rights grievances, participating in Conciliation, Mediation and Arbitration. Advocating before the Police Services Board regarding the termination of Civilian members and Probationary Constables.

Through research and attendance at several educational workshops and conferences, we remain up to date on the coordinated bargaining strategies developed by the OACP and the OAPSB, developments in labour and employment law generally, as well as precedent-setting case law involving pertinent and relevant legal issues.

Familiar with Board Governance and the Business Corporations Act of Ontario, as well as the Canada Business Corporations Act. Providing legal positions on a variety of issues pertaining to Board Governance, Grievances and Collective Bargaining to several Associations across the Province, examining specific provisions of their Civilian and Uniform Working Agreements, including the merits of a grievance and the appropriate interpretation of said provisions as they apply to the membership at large.

Police Services Act

From providing initial consultation to Association Executives regarding the likelihood of informal resolution, formal charges and the outcome at a formal PSA disciplinary hearing, to conducting full hearings as defence counsel on behalf of respondent officers. Including submissions for sentencing, as well as attendance at the OCPC for appeals of PSA decisions. Conducting over one hundred OIPRD and SIU interviews with respondent and witness officers, and acting as defence counsel in OIPRD directed hearings.

We have the experience and skills required to conduct full hearings and appeals, address the Police Services Board where necessary, make application for Judicial Review, and provide representation at OIPRD and SIU interviews. The scope of our work and capabilities is a valuable resource, as the immediate consultation and legal assessment of any potential disciplinary matter will better equip Association Executives to ensure they are providing appropriate representation where it is required, as well as having all of the necessary information to present to the Board on these matters. This ensures prompt and adequate decision-making decreasing the chances of liability being incurred.

In a system where change is necessary, we will provide assertive and effective advocacy to preserve the rights of our clients.

Representing police officers criminally charged on several occasions. In addition to defending these same police officers at their police disciplinary hearings. In consideration of the overlap between these two types of proceedings, it becomes extremely beneficial to have the same representation. Police services consistently attempt to leverage one proceeding against the other with the ‘duties’ of police officers under the PSA, therefore, as applied to Police Associations, possessing knowledge of the criminal law is a pertinent and valuable asset.

Police discipline issues are fraught with parallels to the criminal law, regardless of whether hearing officers have accepted the notion or not. Having counsel who is skilled within this area serves as a benefit to the officers, and most certainly to the Association who has a duty to represent them. Utilizing this knowledge to demand and justify changes within the disciplinary processes of policing issues, we have been successful in achieving positive outcomes for our clients.

Familiar with the Partner Assault Response Services in relation to domestic charges and representing numerous clients on domestic-related charges, both at trial and for resolution. We have represented clients on a wide variety of criminal offences such as impaired, over .80 offences, prostitution charges, attempted murder, break and enter, theft, fraud, criminal harassment, arson, voyeurism, etc.

Special Investigations Unit

Attended well over 100 SIU interviews, both for witness officers, as well as respondent officers. Challenging the SIU on their mandate within these interviews, when/if attempts to operate outside of their authority are made, is vital to ensure true oversight.

Providing aggressive advocacy for members and Police Associations, as it pertains to submitting to interviews, both for officers as well as for Association representatives. Emphasizing the importance of protecting the privilege associated with the Executive role, and providing the legal knowledge necessary to defend the decision not to submit to an interview.

In an age of continually expanding oversight, knowledge of the law, and a passion for ensuring it is adhered to, is essential to ensuring the adequate protection of police officers.

Civil Litigation

​Competent and proficient in the drafting of pleadings in relation to the Small Claims Court, as well as the Ontario Superior Court of Justice. Familiar with the Rules of the Small Claims Court, as well as the Ontario Court of Justice Act, and their application in the representation of both Plaintiffs and Defendants. Conversant in pre-trial procedures including interlocutory hearings, and post-trial procedures such as costs submissions and the enforcement of judgments.

Representing both Plaintiffs as well as Defendants, within various jurisdictions across the Province, ranging from actions in the recovery of debts, slander, and breach of contract. Other claims have ranged from defending breaches of buyer representation agreements (real estate), negligence (tort), nuisance (tort), and the quality of professional services rendered (contract) etc.

Advocating for Police members in the defence of civil suits relating to business, personal and employment matters, we will work to ensure and encourage assertive and insistent communication between parties. This has contributed to our success rate in achieving resolutions outside of litigation, reducing costs for clients and the need for unnecessary court resources.

Human Rights Law

We are qualified in, and conversant with the Ontario Human Rights Code as well as the practices and procedures utilized at the Ontario Human Rights Commission. Experienced in the application of legal principles and advocacy before the Human Rights Tribunal, through mediation and pre-hearing preparation meetings.

Through insistent advocacy and the analytical assessment of several human rights applications, Pamela has attained modifications to command directives and policies and procedures to ensure employers are adhering to the collective agreement, as well as the Ontario Human Rights Code. This has resulted in positive results for individual applicants as well as the entire membership for Associations.

Being skilled and proficient in this area is beneficial within the context of the PSA. Disciplinary Tribunals have a duty to accommodate respondent officers who are suffering from disabilities, which may prevent them from attending their hearings. Through her knowledge of human rights law, her experience in labour and employment, and her legal analysis of the mandate afforded to decision makers pursuant to the PSA, Pamela will advocate ensuring the appropriate accommodation of respondent officers by the Tribunal.

Estates

Offering services in the drafting of Last Wills, Powers of Attorney and Advanced Care Directives, Machado Law will assist you with the provision of all of your estate matters. We are also able to advise clients on the recent decision of Carter vs. Canada (Supreme Court of Canada. 2015-02-06, [2015] 1 SCR 331) regarding advanced care directives and the current state of the law as it pertains to assisted suicide.